Building on a global movement: Violence against women in the African context

 Fareda Banda
 BL LLB (Zimbabwe), DPhil (Oxon)
 Reader in the Laws of Africa, School of Oriental and African Studies, London, United Kingdom
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 Edition: AHRLJ Volume 8 No 1 2008
  Pages: 1 - 22
 Citation: (2008) 1 AHRLJ 1-22
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Summary

This article celebrates the gains that have been made by women in the field of human rights as they pertain to issues of violence. It provides an overview of international and regional initiatives illustrated with reference to case law. The focus of the article is on provisions in the African Protocol on Women’s Rights tackling violence. While acknowledging that normative recognition of rights is not by itself the panacea for the pervasive discrimination that affects women, the article argues that the almost universal recognition of violence against women as constituting a violation of their fundamental rights is cause for celebration, not least because it provides the framework for dealing with the problem and provides states with concrete goals.

1.  Introduction

The international community has travelled a long way towards recognising violence against women as a violation of their human and fundamental rights. Although the issue had received sporadic attention over the years, it is true to say that many of the substantial legal gains came in the last decade of the twentieth century. The most recent instrument pertaining to the rights of women, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa [1]  (African Women’s Protocol), contains comprehensive provisions on violence against women. Indeed, the African Women’s Protocol came into force on 25 November 2005, which is also International Day for the Elimination of Violence against Women. This marks the start of the annual 16 days of activism against gender violence campaigns, observed in many countries. [2]  This article focuses on the issue of violence against women through the prism of human rights.

While the international focus on violence against women has been welcomed in many circles, Kapur identifies some difficulties with the attention paid to this topic, including the fact that it reinforces the notion that women, especially those from the south, are ‘weak and vulnerable and in need of rescue and protection’. [3]  She further notes that the international community’s coalescing around the issue of violence has led to a distortion of the ‘women’s rights project’, with violence against women now being seen as the principal human rights violation experienced by women. [4]  She notes that the difficulty with this approach is that [5]

It is of course also worth acknowledging from the outset that the formal normative-based approach that I have chosen to take is not without its problems. [6]  The adoption of human rights instruments is clearly not an end in itself, but the beginning. It goes without saying that rights without implementation and enforcement mechanisms are meaningless. [7]  It is also important to acknowledge that one cannot look at a woman’s right to be free from violence in isolation. The right to life, to bodily integrity and indeed to equality and to be free from discrimination on the grounds of sex must be seen as part of a mosaic of rights which include access to food, to adequate health care, to education and equal opportunities to access resources and to participate in decision-making processes. It is not by accident that the Millennium Development Goals list gender equality as a goal to be achieved along with seven others. [8]  Nevertheless, it remains important to examine, and indeed to celebrate, normative gains made by women at the international level. [9]

Divided into three parts, the article starts with an examination of existing human rights norms which pertain to issues of violence against women which are reflected in, and indeed informed, the drafting process of the African Women’s Protocol. This includes an examination of the provisions of the international bill of rights [10]  and the general recommendations of the Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW Committee) focusing on CEDAW General Recommendation No 19 on violence against women. [11]  Thereafter, the paper focuses on the United Nations (UN) General Assembly Declaration on the Elimination of Violence Against Women, 1993 (DEVAW). [12]  Initiatives taken at international conferences, including Vienna, [13]  Cairo [14]  and Beijing, [15]  are also considered in brief. In part two, I look at the regional, the African Charter on Human and Peoples’ Rights (African Charter), [16]  and sub-regional initiatives, including the Addendum to the Southern African Development Community (SADC) Declaration on Gender and Development, 1998. [17]  The examination of the provisions of the African Women’s Protocol that was finally adopted includes an assessment of the feasibility of enforcement on a continent where gender discrimination continues to be one of the greatest challenges; this is part three. The conclusion follows.

2.  Violence against women within the international human rights framework

The prohibition of discrimination contained in the international bill of rights ensures that all the rights contained therein are to be enjoyed without discrimination on the basis of sex. [18]  This means that women are to be protected from torture and cruel, inhuman and degrading treatment. [19]  Similarly, they have a right to life, [20]  which in the context of the International Covenant on Economic, Social and Cultural Rights (CESCR) includes the right to food and an adequate standard of living, thus touching on issues of physical and economic violence against women. [21]  Both the UN Convention on the Rights of the Child [22]  (CRC) and the African Charter on the Rights and Welfare of the Child [23]  (African Children’s Charter) contain provisions prohibiting abuse, [24]  and also guarantee the child’s right to life [25]  and to be free from discrimination on grounds including sex. [26]

Although violence against women was mentioned at the Mexico, Copenhagen and Nairobi women’s conferences, [27]  it was not included in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). [28]  The only provision that could be said to address violence against women directly is article 6 on trafficking and forced prostitution. [29]  The CEDAW Committee has, through its general recommendations, done much to remedy the silences in CEDAW on the issue of violence against women. [30]  General Recommendation No 19 seeks to provide a comprehensive understanding of issues pertaining to violence against women within CEDAW, providing: [31]

General Recommendation No 19 makes the link between violence against women and existing human rights norms. The rights covered include protection from torture, the right to life, the right to equal protection under the law, the right to equality in the family, the right to health and also just and favourable conditions of work. [32]  Building on the case of Velasquez, [33]  the responsibility of the state to prevent, investigate, punish acts of violence and to compensate those affected is included. [34]  In addition to giving examples of some of the types of violence that are proscribed under various provisions in CEDAW, General Recommendation No 19 also considers the reasons (legal, cultural, socio-economic) behind the perpetuation of violence against women. [35]  The recommendations offered reflect a holistic understanding of the causes and consequences of violence against women, providing as they do for states to undertake to strengthen institutions, provide training for judicial, law enforcement and other public officials, run education campaigns in the media, challenge attitudes and stereotypes that lead to the perpetuation of violence against women, provide counselling to the victims of violence and provide compensation to them. [36]  States are also enjoined to report [37]  on what they have done to meet the obligations envisaged by General Recommendation No 19, [38]  and indeed they are examined on the issue by the Committee. [39]

It was at the 1993 human rights conference in Vienna that the issue of violence received detailed international scrutiny. This was because women from all over the world identified violence within their own societies as one of the key impediments to the enjoyment by women of their rights. [40]  It was at Vienna that states agreed to the formulation of the document that became the United Nations Assembly Declaration on the Elimination of Violence Against Women, 1993 [41]  (DEVAW). In addition to highlighting the impact of intersectional discrimination on certain groups, [42]  DEVAW closely mirrors CEDAW General Recommendation No 19 in recognising that women experience violence in the family, the community and at the hands of the state. [43]  DEVAW envisages the adoption of a multi-agency approach to tackling violence against women. States are to provide resources for staff training as well as the provision of counselling services. [44]  Moreover, there is recognition of the contributions that the non-government sector can make. [45]  The UN is also enjoined to actively participate in the promotion and co-ordination of anti-violence strategies; as well as financing and facilitating international co-operation to tackle the issue. [46]

Once the international community had grasped the nettle, it pressed on, and in 1994, the UN appointed its first Special Rapporteur on Violence against Women, Radhika Coomeraswamy. [47]  Reasons given for making the appointment included states’ ‘deep concern at the continuing endemic violence against women’. [48]  Her findings on the causes and consequences of violence resonate with African women’s experiences of violence. The UN Special Rapporteur on Violence against Women has produced a multitude of reports highlighting the fact that the issue affects women in the family, [49]  in war situations, [50]  and also that violence against women manifests itself in different ways the world over, hence her reports on cultural dimensions of violence [51]  amongst many others. She has also made country visits and produced more than 20 reports. [52]

The appointment of the Special Rapporteur coincided with the International Conference on Population and Development (ICPD) held in Cairo in 1994. Cairo dealt with gendered dimensions of reproductive rights violations, including harmful traditional practices and the effects on women’s health of violence and lack of access to adequate health care. [53]  Focusing on issues of reproductive health, the Programme of Action made clear that violence against women hindered their right to health. [54]  Specifically, issues such as forced abortion, sterilisation and harmful practices were identified as constituting a violation of women and children’s rights. [55]

The gains made at Vienna and Cairo were reinforced in the Beijing Declaration and Platform for Action of 1995. [56]  Violence against women was identified as one of the 12 critical areas of concern. [57]  At Beijing it was recognised that women’s lives were continuing to be blighted by violence. States were enjoined to act to prevent violence against women within their societies. [58]  Again the different manifestations of violence were identified and it was reiterated that violence against women constituted a violation of their fundamental rights. [59]  Interestingly, the Beijing+5 Outcome Document shows that much progress has been made in the global recognition of violence against women as violating their human rights. [60]

The coming into force of the Optional Protocol to CEDAW, 1999, [61]  provided an avenue for individuals to bring individual complaints alleging a breach of CEDAW provisions to the Committee. For those states not opting out, it also provided for the Committee to invoke article 8, the inquiry procedure, to investigate reports of grave or systematic violations of rights. It is worth noting that one of the first cases dealt with by the Committee under the complaints provisions of the Optional Protocol to CEDAW relates to violence against women in the family.

In AT v Hungary, [62]  a woman had been severely assaulted by her partner on many occasions. She had complained to the police and the courts. However, little concrete assistance had come of her many complaints. A complaint was made to the CEDAW Committee. The Committee decided that Hungary had violated articles 2(a), (b) and (e) as well as articles 5(a) and 16 of CEDAW. The Committee censured Hungary for not having provision in its law for restraining or protection orders. Moreover, it was censured for the absence of shelters to house Ms AT and her children. The existing shelters had failed to offer refuge to Ms AT because one of her children was disabled and the refuges could not cope with children with disabilities. The prioritisation by the civil courts of the abuser’s property rights over the victim’s right to be protected from violence came under criticism. [63]  Echoing the recommendations found in its General Recommendation No 19 on Violence Against Women and DEVAW, the Committee made clear that to address the failings identified in the AT case would require the state to undertake a range of measures which included providing legal aid, giving Ms AT and her children a safe and secure home, ensuring that she received the requisite child support, as well as compensation for the harm that she had suffered. In addition to implementing a national policy on the prevention of violence within the family, officials, including judges and the police, should be given training on CEDAW and its Optional Protocol. Moreover, the state was to ensure the introduction of a specific law outlawing violence against women and to ‘investigate promptly, thoroughly, impartially and seriously all allegations of domestic violence and bring the offenders to justice in accordance with international standards’. [64]

The first inquiry undertaken by the CEDAW Committee was to Mexico to investigate reports of abduction, rape and murder of women, made by two non-governmental organisations (NGOs). [65]  The NGOs alleged that more than 230 women had been killed near Ciudad Juarez and that little had been done to investigate their deaths and disappearances or indeed to bring the perpetrators to justice. Families of the victims had been kept in the dark. The Committee sent two of its members to investigate. In a long and comprehensive report, the Committee detailed the widespread violence against women and the fact that a culture of impunity appeared to have developed. The Committee produced a comprehensive list of recommendations for Mexico to implement. These included the timely investigation of crimes committed against women, the training of police and judges, ensuring that families were kept appraised of progress in investigations and that the law was enforced with punishments being meted out to the guilty and adequate remedies, including compensation for those who had experienced violations of their rights. The state was asked to report on progress in its next report under article 18 of CEDAW.

More recently, the UN has (re)turned its attention to specific forms of violence. [66]  This can be seen by the adoption of the Palermo Protocol, [67]  prohibiting the trafficking of women and also providing for inter-state co-operation and the punishment of traffickers. [68]

Not to be outdone, regional and sub-regional bodies have also paid attention to the effects of violence on the ability of women to enjoy their rights. The next section looks at some of these initiatives.

3.  Regional initiatives on violence against women

In line with the international bill of rights, the African Charter has provisions proscribing torture [69]  and guaranteeing the right to life, [70]  to health [71]  and outlawing discrimination including that based on sex. [72]  Article 18(3) of the African Charter provides, in part, that women are to be protected from ‘every discrimination’. More recently the African Union (AU) has adopted the Solemn Declaration on Gender Equality in Africa which makes it clear that violence and abuse of girls and women, particularly in times of armed conflict, is proscribed. [73]

Sub-regionally, the SADC has an instrument specifically on violence against women. [74]  This, the Addendum to the 1997 Declaration on Gender and Development, forms the basis of the provisions on violence against women found in the African Women’s Protocol and thus deserves close attention.

4.  The Southern African Development Community

Coming as it did after the Beijing Conference of 1995, the SADC Addendum on violence reflects many of the international initiatives on violence against women discussed above. The Preamble to the SADC Addendum notes that there has been an increase in violence against women, [75]  and article 3 notes that the occurrence of violence against women and children is a reflection of ‘unequal power relations between women and men’, resulting in women experiencing domination and discrimination. [76]  Having identified the main cause of the problem, the definition given of what constitutes violence is very broad and covers ‘physical and sexual violence, as well as economic, psychological and emotional abuse’. [77]  The addition of economic violence constitutes an advance on previous documents which have focused on physical, sexual and psychological violence. However, in keeping with DEVAW and, indeed, the Convention of Belem do Para, the Addendum locates violence in the family, community and also violence committed or condoned by agents of the state. [78]  The examples of types of violence given are also varied and include femicide, sexual harassment and trafficking. [79]

Noting that existing measures have failed to protect women and children from violence, the Addendum divides its recommendations for remedying that situation into categories covering not only legal change, but also cultural change. It places on states the duty of providing the resources necessary to tackle the problem. [80]

Under the legal section it is anticipated that states will enact laws proscribing violence against women and will amend those that contain discriminatory provisions which either excuse or minimise violence against them. In keeping with these injunctions, some of the SADC states have introduced legislation proscribing violence against women. [81]  Judicial intervention has also brought about changes not least in the area of sexual violence against women. The Zimbabwean case of H v H [82]  made it clear that the concept of marital rape was recognised in Zimbabwean law, challenging the long-held legal and socio-cultural assumption that upon her marriage a woman is presumed to give consent to intercourse with her husband for the duration of the marriage. [83]

The section on social, economic, cultural and political changes enjoins states to ‘introduce and support gender sensitisation and public awareness programmes’ [84]  as well as encouraging the media to avoid stereotyping women. [85]  Related to this is that states undertake to eradicate those elements of traditional practice and norms that lead to the perpetuation of violence against women. [86]  It is important that the Addendum recognises that not all aspects of tradition and religious practice are harmful or prejudicial to women. This opens up the possibility of working with or through religion and ‘culture’ or tradition to tackle discriminatory practices which are used to justify or which exacerbate violence against women.

The SADC Addendum echoes article 5 of DEVAW in that it anticipates the adoption of policies, programmes and mechanisms within the region to monitor violence against women and to ensure that the Addendum’s recommendations are followed. [87]  Although it has yet to come to pass, the Addendum urges states to give ‘urgent consideration … to the adoption of legally binding SADC Instruments on Preventing Violence against Women and Children’. [88]  Perhaps it is because of this as yet unfulfilled promise that the SADC states were so influential in the drafting of the violence provisions in the African Women’s Protocol. It is to this that the article now turns.

5.  The African Women’s Protocol

5.1  Provisions on violence in the final version of the African Women’s Protocol

The significance of violence against women is highlighted in the Preamble which expresses concern that, despite the ratification by states of the African Charter and other human rights instruments, ‘women in Africa still continue to be victims of discrimination and harmful practices’. Article 1 of the Women’s Protocol defines violence against women as including:

The definition builds on those found in existing instruments, not least DEVAW and the SADC Addendum. In common with CEDAW General Recommendation No 19, the Women’s Protocol reflects an understanding of gender (social and cultural construction of the roles of men and women in society) and how it impacts upon justifications often given for violence against women, and also the reasons why it is sometimes difficult to change behaviour. [89]  This is clearly seen in article 2 which, like CEDAW, lists some of the state’s obligations in seeking to eliminate discrimination against women and includes the duty to modify [90]

It is significant that violence against women is recognised as an affront to their dignity, hence the injunction in article 3 that states have a duty to ‘ensure the protection of every woman’s right to respect for her dignity’, [91]  which includes the ‘protection of women from all forms of violence, particularly sexual and verbal violence’. [92]

Although provisions on violence against women are found throughout the African Women’s Protocol, they are concentrated in article 4 entitled ‘right to life, integrity and security of the person’. Article 4(1) starts by reiterating the core human rights to life and to be free from degrading, inhuman punishment and treatment, while article 4(2) contains an exhaustive list of state obligations. These reflect those found in the instruments discussed in part one of this article and include the state’s duty both to enact and also to enforce laws prohibiting all forms of violence against women. [93]  Crucially, it is provided that violence is proscribed ‘whether the violence takes place in private or public’. This suggests that forced sex, including that occurring between spouses, is proscribed, thus by implication requiring ratifying states that have not already done so to introduce the crime of marital rape into their national laws. Although those against recognising marital rape often argue that it is difficult for law to regulate the privacy of the marital unit, [94]  it is hoped that states will ensure that those women who approach law enforcement agencies for assistance will receive help and support, not derision and condemnation.

Moreover, it needs to be emphasised that all forced sex is prohibited. The ‘moral character’ of the victim or indeed what she was wearing or where she was when she was raped or sexually abused should not be a consideration in deciding whether to prosecute an accused. [95]  Procedural laws may need to be changed and states should consider the introduction of evidence from professionals acting as expert witnesses and testifying on the different effects of rape on women. Furthermore, it is worth noting that the understanding of rape should not be limited to stranger rape, thus ignoring what is sometimes termed ‘date rape’. States should ensure that their definitions of rape do not discriminate against a victim who has not ‘actively resisted’ the rape or on stereotypical views of what constitutes an adequate or ‘proper’ response to rape, for as noted in the European case of MC v Bulgaria:  [96]

The African Women’s Protocol recognises that key to the enjoyment of rights is the need for an adequate infrastructure to deal with claims of violence. The first requirement therefore is that violence is recognised as a violation of human rights. Next, it requires that there be adequate administrative, social and economic measures to prevent, punish and eradicate all forms of violence against women. [97]  Moreover, the state needs to punish perpetrators of violence and also provide rehabilitation to victims [98]  and facilitate the provision of reparations if necessary. [99]  Recognising the need for a multi-pronged approach, the Women’s Protocol provides in article 8 for the state to provide access to justice by providing legal aid and training judges and providing information. The duty of the state to provide adequate remedies is reinforced in article 25 of the Women’s Protocol.

The recommendations made in both the Fernandez and AT cases offer clear pointers to African states about what they will need to do to ensure that the African Women’s Protocol provisions proscribing violence against women are enforced. [100]  The problem of violence against women requires that states go beyond the legal to take on responsibility for the provision of alternative housing, the guarantee of support to victims and their children as well as effective sanctions and compensation being offered. This requires adequate resource and budgetary provision. [101]  For a continent strapped for resources, this constitutes a tall order. It may require a ‘joined up’ reading and interpretation of the African Women’s Protocol so that the provisions on the state minimising defence spending in order to spend more on social development [102]  can be used to prioritise spending on health, education and initiatives to tackle violence against women, thus moving resources from a negative form of violence (war) to violence prevention in the family and community.

Specific types of violence covered in the African Women’s Protocol will now be considered.

5.2  Trafficking

Reflecting the renewed interest in trafficking [103]  is article 4(2)(g), which requires the state to prevent and condemn the practice while prosecuting those involved in trafficking and offering assistance and protection to those most at risk. Although often associated with the sex trade, much of the trafficking that takes place in parts of Africa, especially West Africa, is linked to trafficking of children for labour. [104]  Girl children are trafficked for domestic service. [105]  In addition to being a violation of children’s rights, the trafficking issue may also highlight the problem of domestic and other migrant workers in general and thus the need for African states to ratify the Migrant Workers Convention, 1990. [106]  Although there are protocols on how to deal with trafficked people, much can be learnt from the ECOWAS Declaration on Trafficking, 2001, which anticipates inter-state co-operation to tackle the practice, including the setting up of specialist trafficking units, as well as education, together with punishment of the traffickers. It is worth noting that measures should also include the provision of counselling and support services for the victims of trafficking. The victims of trafficking should not be prosecuted or punished for immigration control violations because they did not enter the country voluntarily but under duress. [107]

5.3  Harmful practices

It is true to say that harmful practices receive the most attention in the African Women’s Protocol. [108]  They are defined thus: [109]

Interestingly, this definition identifies many of the consequences of violence listed in CEDAW General Recommendation No 19. [110]  Article 5 of the Women’s Protocol focuses on the elimination of harmful practices, noting that states have an obligation to take all ‘necessary legislative and other measures to eliminate such practices’. [111] This is an area in which African states have already acted, with many having enacted legislation to prevent harmful practices such as female genital cutting. (FGC). [112]  The question becomes, is law by itself enough? Indeed, is law an effective tool to deal with what is a cultural practice? [113]  Much time and thought has gone into addressing these questions, with the result that the common consensus is that states should adopt a multi-pronged approach which uses law as well as education as a preventative measure and rehabilitation for those affected. These should be provided by the state. [114]

Article 5 requires states not only to outlaw harmful practices, but also to educate the public about the practice, to set up outreach programmes, to rehabilitate victims and to protect women and girls at risk of being subjected to said practices. Significantly, the Women’s Protocol provides that it does not matter if female genital cutting is taking place within a medical establishment; the state still has an obligation to eradicate it. This is an important innovation as it deals with the argument that female genital cutting is only a problem if performed under unsafe or unsanitary conditions. The drafting in article 5 highlights the fact that the practice falls squarely within the parameters of gender-based violence and cannot be tolerated whatever the surroundings in which it is perpetrated.

Given that harmful practices, especially FGC and early marriage, affect young girls disproportionately, it will be important for state parties to take measures to mitigate the vulnerability and powerlessness of young girls which leaves them open to being cut. This may include educating teachers to alert officials, mediators and educators to talk to family and community members about why these practices are harmful. It may also entail the provision of psychological counselling and medical assistance to those who are already affected. [115]

5.4  Family

It is in the home and within the confines of the family that women are most likely to experience violence against them. [116]  The effects of violence against women in the family are manifold. The economic vulnerability of women and children is compounded by their lack of voice and general powerlessness which leaves them open to experiencing abuse and the violation of their rights. [117]  It is for this reason that violence needs to be taken seriously. [118]  This will require states to train law officials to deal sensitively with victims of violence. It will also require states to put into place measures to deal with cases of violence against women which will need to include protection orders or interdicts prohibiting the violator from approaching or violating the woman again, fast-tracking legal services, instituting interim measures to ensure that violence ceases while a full hearing is organised, counselling and rehabilitation services, refuges if necessary and if appropriate, as well as providing financial support for the woman and any children that she might have. 

Polygyny has been held up as constituting violence (emotional and psychological) against women. [119]  The polygyny issue is somewhat tricky, for it has been argued that women’s economic weakness makes marriage which may entail polygyny a necessary ‘evil’. [120]  On the other side of the fence are those who argue that polygyny increases the likelihood of women (and sometimes their children) experiencing economic, psychological and physical violence. [121]  The final version of the African Women’s Protocol does not commit to either side providing, as it does, that: ‘monogamy is encouraged as the preferred form of marriage and that the rights of women in marriage and family, including in polygamous marital relationships, are promoted and protected’. [122]

Other forms of family-related violence outlawed in the African Women’s Protocol include early marriage and forced marriage. [123]  Also proscribed is the practice of subjecting widows to degrading and inhuman treatment on the deaths of their husbands. [124]  The abuse of widows is well documented. [125]  Also proscribed in the Women’s Protocol is property-grabbing, which often leads to wives and female children being deprived of their property and indeed being evicted from their homes. [126]  Moreover, it is also provided that widows have the right to remarry if they wish and also that they should be allowed to choose who they marry. [127]  This is an important provision which outlaws, by implication, levirate unions, sometimes known as ‘inheritance marriages’ and, indeed, any forced marriage. In light of the HIV/AIDS crisis on the continent, I would argue that a widow’s right to choose who she remarries should be linked to article 14(1)(e) on a woman’s right to be informed ‘… on the health status of one’s partner, particularly if affected with sexually transmitted infections, including HIV/AIDS, in accordance with internationally recognised standards and best practices’. [128] 

5.5  The right to bodily integrity and violence against women

Given the sensitivities surrounding reproductive rights, [129]  it is perhaps not surprising that article 14 on reproductive rights, and especially the limited right to abortion found in article 14(2)(c) has met with many objections. [130]  While abortion is probably the most controversial issue in reproductive health, it is worth remembering that banning or denying women the right to abortion may lead to their having to seek the services of untrained people who may cause much physical and ultimately psychological damage by their incompetence. It is also worth remembering that abortion is a sex-specific service, meaning that inadequate or poor provision impacts solely on women to their detriment.

5.6  Violence against women and children in the work place and in school

Recognising that girl children are sometimes sexually harassed and indeed abused in schools is article 12(1)(c), which provides that states have a duty to ‘protect … the girl child from all forms of abuse, including sexual harassment in schools and other educational institutions’. The confronting of this issue, which acts as a major barrier to the enjoyment by female children of their right to education, is important. [131]  Research done in South Africa yielded the following data: [132]

Tackling the problem will require states to take action against teachers and others in authority who abuse their position by forcing themselves on their pupils. [133]  Equally important is the injunction that states are under an obligation to provide counselling and rehabilitation services to victims of abuse and sexual harassment. [134]  This should include the provision of (alternative) educational opportunities for those forced to leave school prematurely as a result of pregnancy or harassment or abuse. [135]

Although African women have a low rate of participation in the formal labour market, those that do work outside the home are sometimes subjected to unwanted sexual advances. This constitutes harassment and is prohibited behaviour under the African Women’s Protocol. [136]  However, few states have laws explicitly proscribing sexual harassment in the workplace. The enactment of legislation will have to go hand in hand with workplace education tied up with enforcement to ensure that the message is received that sexual and other forms of harassment in the work place constitute a form of violence against women. [137]

Interestingly, article 13 on economic, social and cultural rights also requires states to ‘take effective legislative and administrative measures to prevent the exploitation and misuse of women in advertising practices’. [138]  This is an important innovation which addresses a long-standing feminist bête noire, namely the sexist portrayal of women in the media and in advertising which constitutes stereotyping of women. [139]  This moves the debate on from seeing it as an issue of free speech to declaring it a form of gender-based violence grounded in women’s inequality.

5.7  Women in armed conflict

Although there have been many critiques of the inadequacy of international humanitarian law to deal with violations perpetrated against women in armed conflict, [140]  this is the area in which case law has grown exponentially. [141]  With this in mind, the African Women’s Protocol has a specific article on the protection of women in armed conflict. [142]  It requires state parties to undertake to abide by the rules of international humanitarian law, particularly as they pertain to women. [143]

Building on the International Criminal Tribunal for Rwanda (ICTR) Statute, [144]  the International Criminal Tribunal for Yugoslavia, (ICTY) Statute [145]  and the Rome Statute, [146]  all of which include rape as a crime against humanity, as well as the Akayesu decision, [147]  in which the ICTR found that rape could constitute genocide, the African Women’s Protocol makes it clear that: [148]

The high incidence of rape and sexual violence against women in refugee camps and in times of war [149]  on the continent indicates that states in conflict or with a refugee population in their midst will have to make tackling violence against women a priority. This is especially so when young girls are involved. The requirement in article 11(4) that children under 18 should not be recruited into combat is particularly important for female children, who are often treated as sex slaves or who become the ‘wives’ of soldiers or commanders, cooking for them and being forced into sexual relationships with the attendant risks of disease and pregnancy. [150]

Again, it is important to stress that states need to ensure that there are gender sensitive procedural guidelines in place. There is much to be learned from the work of the international tribunals, of whose work De Than notes: [151]

The importance of women’s participation in decision making and in the post-conflict reconstruction of their societies is acknowledged in the Preamble, which refers to Security Council Resolution 1325 as well as in article 10(2). [152]

5.8  Violence and intersectionality

The African Women’s Protocol is alive to the fact that some women may experience multiple and intersecting forms of discrimination. [153]  In outlawing violence against the elderly, [154]  disabled women [155]  and women in distress, [156]  the Women’s Protocol is reminiscent of both the Preamble to DEVAW and article 9 of the Convention of Belem do Para, which provides:

It is positive that the African Women’s Protocol recognises the fact that women are not a homogeneous group. By making separate provision for the three groups, generally classified as ‘vulnerable’, there is a recognition that women have different needs.

6.  Conclusion

It is clear from the above general overview of the development of the prohibition of violence against women that the issue of violence against women has been recognised as important and worth normative attention the world over. The African Women’s Protocol reflects many of the international gains made in the field of women’s rights, and in particular issues pertaining to violence, and is to be welcomed. All that remains is for it to be enforced.